On March 15, 2022, the EB-5 Reform and Integrity Act of 2022 introduced several far-reaching changes to the EB-5 investment industry, many of which offer unprecedented benefits for investors. One of the foremost changes is the new arrangement for reserved visas. Each fiscal year, 32% of the total EB-5 visa pool will be set aside for investors in the three following kinds of projects: 20% for rural targeted employment areas (TEAs); 10% for high-unemployment TEAs; and 2% for public infrastructure projects. As a result, investors in the above project categories will enjoy priority processing from United States Citizenship and Immigration Services (USCIS). Since their EB-5 visas will be taken from the reserved pool, such investors will likely immigrate to the United States much more quickly than other EB5 investment applicants.
The May 2022 Visa Bulletin has been updated to include the reserved visa pool as EB-5 categories, meaning that foreign nationals who invest in any of the above three project types and file their I-526 petitions will have the chance to benefit from priority processing. Even more significantly, investors in the reserved visa pool will not be subject to cutoff dates limiting when they can receive their Green Cards—even if their nationality is oversubscribed.
It is important to note that only investors who submit Form I-526 as of the publication of the May 2022 Visa Bulletin will have their visas drawn from the reserved pool.
In Chart A of each Visa Bulletin, investors from backlogged countries are assigned a final action date, which dictates when they can receive their two-year conditional visas. The Department of State (DOS) currently grants direct investors and investors in the reserved visa pool “Current” status, meaning that they are not subject to final action dates. In contrast, Chinese regional center investors from the unreserved visa pool are assigned a final action date of November 22, 2015; applicants who filed their I-526 petitions after this date cannot receive their visas even if granted USCIS approval.
Chart B contains the dates for filing, which limit when Chinese investors can apply for their visas. The only category with a date for filing is “5th Unreserved”—that is, Chinese regional center investors from the unreserved visa pool. Their cutoff date is December 15, 2015.
A Valuable Opportunity to Immigrate Quickly, With No Cutoff Dates
Even though all investors in the reserved visa pool are granted priority processing, this benefit is especially significant for Chinese investors. China has been experiencing visa retrogression since 2015, and this country’s substantial backlog is unlikely to be cleared in the near future. As a result, it may take Chinese investors 10 to 15 years just to receive their initial two-year residency. Many potential investors may find this to be an unconscionably long wait.
However, if Chinese investors choose infrastructure projects or projects located in TEAs, they may be able to circumvent the cutoff dates: as the Visa Bulletin indicates, investors in the reserved pools enjoy current status regardless of their nationality. This simple way to avoid the lengthy delays associated with visa retrogression—and possibly immigrate to the United States in only two years or so—can be invaluable for Chinese EB-5 applicants.
The value of the reserved visa pool is all the more evident in light of the Visa Bulletin’s warning that the DOS may “establish a China-mainland born final action date and application filing date for the C5 and T5 categories [that is, direct investors] as early as June to keep number use within the maximum allowed under the FY-2022 annual limits if sufficient demand materializes.” Chinese direct investors may thus be subjected to cutoff dates starting in June.
Moreover, other countries that are not currently experiencing visa retrogression but have high volumes of EB-5 investors, such as India and Vietnam, should also be interested in priority processing. These high-demand countries may become backlogged in the coming months.
Time is of the essence for EB-5 investors who wish to benefit from the set-aside visa categories. Since only 32% of the total number of EB-5 visas is eligible for priority processing, the reserved pool may fill up quickly. Rural TEA projects have by far the largest allotment of the reserved visa pool (20%), so investors would do well to look for such projects.
When Can Regional Center Investors File Form I-526?
The EB-5 Act of 2022 reauthorized the regional center program, but this aspect of the bill will only come into effect “60 days after enactment”—before then, USCIS will not accept new regional center I-526 petition filings. Most likely, the regional center program will officially resume operations as soon as May 14, 2022, giving potential investors some time to identify potential offerings and plan their investments. As mentioned previously, it is crucial for investors interested in the reserved visa pools to file Form I-526 as soon as possible.
As a leading fund manager and regional center operator in the EB-5 field, EB5 Affiliate Network (EB5AN) has helped over 2,000 investors from more than 60 countries through the EB-5 process.